The Kenosha telegraph. [volume] (Kenosha, Wis.) 1860-1888, 1887-11-25
en- IMPORTANT OPINION.

Acknowledgement Garland on the Rights
of Settlers He CONSTITUTES the Indemnity
Land Acts as Granting Priority 10 the
Claims ef Bona Eide Settlers.
WASHINGTON, Nov. %. Attorney General
Garland has sent to Secretary Lamar an
opinion relative to the adjustment eff land
grants under the act of March 8, 1887.
The opinion is sent in reply to letter SUBJ
hitting three questions for decision. Mr
Garland says the first section of this act
directs the adjustment of the grants,
tee second provides for the resto-
radon of title to the United
States where lands have been errone-
ously certified or patented to the rail
roads, and the third provides that "if in the
adjustment of said grants the presumption
entry of q bona fide settler has been en-
roneously Cancelled on any account" each
settler, upon application, shall be rein
stated and allowed to perfect his entry by
complying with the public land laws, pro-
viding there is no legal bar to such rein
statement The Attorney General pro-
ceeds:
"The question submitted under this section
is: What class of purchasers is referred to py
the expression bona tide purchasers OF said
unclaimed landS?''
Three classes of persons are provided fol-
under this section. First, bona fide settlers
whose homestead or presumption entries have
been enormously Cancelled on account OF rail.
read grant or withdrawal; second. bona fide
purchasers OF such unclaimed lands; third,
bona Tide settlers residing thereon.
The rights of the several classes to the
lands referred to in the section are successive
in the order stated IN the section. The first in
right is the homestead or presumption settler
whose entry has been wrongfully Cancelled. If
he elects to assert his rights and has not been
disqualified by locating another claim or
making another entry in lieu of the
entry enormously cancelled his right is alb
solute, and the successive rights of the
remaining two classes can not attach if he Law
fully asserts his claim. If he fails to claim the
land or is disqualified under the act. the second
class OF persons who are the bona tide pur.
chasers of the land unclaimed by him, attach
and have precedence over the third class. The
bona fide purchasers here referred to are those
who without knowledge of wrong or error, have
purchased from the railroad com.
pany lands that had been previously en-.
tered by presumption or homestead settler
whose entry had been enormously Cancelled,
and which land the presumption or homestead
settler did not elect to claim after the recovery
by the proceedings prescribed by the second
section of the act.
1.-THE second question submitted by you is:
Can the department., after adjustment of the
grant by the department, issue patent to the
purchaser of such land before the said land has
been reconveyed by the road or title recovered
by judicial proceedings!
''The second section declares that the mode
to finally determine whether the lands shall
have been enormously certified or patented
shall be by the admission of the company aud
reconveyance, or, in case of dispute, by jul
dlclal proceeding. Until the lands shall have
been legally determined to belong to the United
states the right to issue patents under the
fourth section does not arise. If patents
should issue under the fourth section be-
fore reconveyance or judicial recovery
under the second, and proceedings should
then be instituted to cancel the patent
issued to the railroad, in case of de-
csion adverse to the Government in the pro.
ceeding instituted, two patents would be out
standing at the same time for the same land.
The express words of the section with reference
to the time when the patent shall issue are:
The person or persons so purchasing in good
faith shall be entitled to the land so purchased
after the grants respectively shall have been
adjusted
1.-THE third question is as follows "rhe fifth
section OF said act provides that where rail-
road company has sold lands not conveyed to
Or for the use of such company and where SUCH
lands are for any reason excepted from the op-
eratons of the grant of said company it shall
be lawful for the bona-fide purchaser thereof
from said company to make payment to the
United States for said land, and thereupon
patents shall issue therefor to the said bona
Tide purchaser, OF his heirs or assigns.
1.-The question submitted under this section is
whether the proviso last above quoted is con-
fined in its application to lands within the pri-
mary granted limits, or whether. it applies to
lands within the indemnity limits of which the
company has made selection but which has not
been approved to it..
The first section Of the act in the use of the
word grant must have necessarily included
both the primary and indemnity limits in the
adjustment, as it was doubtless intended that
the adjustment should be a full and final one
The lands which, under the adjustment, were
found not to be the property of the
railroad were intended to be free
from the cloud of claim by the railroad and re.
stored to the public domain for disposition ac-
cording to law. The intent of the act shows
that to carry out its purpose the word grant,
wherever used in the second third and fourth
sections, must include the lands in both prima-
ry and indemnity limits, as each directly, or by
necessary implication, refers to the adjustment
provided for in the first section.
The protection afforded and redress granted
The settler by each of the sections is fully as
important in the indemnity as in the primary
| limits. In order that the remedy may be ade-
auate to redress the wrong the word g rant in
The fifth section must be construed to include,
as it does inthe preceding sections of the act,
both primary and indemnity lints''
Upon receipt of the opinion, Secretary
Lamar directed the Commissioner of the
General Land Office to proceed at once and
with as much dispatch as possible to adjust
all land grants under this act of March 8,
1887. His instructions to the Commissioner
are minute as to details and are in accord
ance with the views of the Attorney-Gen-
eral as expressed in the foregoing.